Redstate

I have faith that the GOP wants an excellent candidate and that Bush will choose an excellent nominee.  That means Luttig, McConnell, Jones, Karen Williams, Garza, William Pryor, Owen, Janice Rogers Brown, Maura Corrigan, John Cornyn, the list goes on and on ...

yes...

Yes...

YES !!!

Finally... the GOP grows a backbone. Or at least talks like it has one.

I like Luttig a lot... putting him and Roberts on the court would put some serious intellectual firepower on the 'conservative' side, on top of Scalia and Thomas (who is often sold short).

It seems to me Luttig is the best potential justice, but I still would be happy with Estrada, Jones, or someone else in that mode.

I would also be happy with Jones, but Luttig has been at the top of my list since before O'Conner resigned, but we knew it was coming.

I think there are several quality people to choose from, but some come with more controversy than others, and some may have the right philosophy, but may not handle the pressure as well.

No matter what, whoever Bush nominates will probably be in for a nasty fight, and the dems are likely to let loose with everything they have.

But all the rest are great.

It would seem as if a Jones or Garza would be harder for the D'd to vote against. One line of attack against Luttig will be that he is a white man. That might be enough to tip one vote, which may be the difference between victory and defeat.

Luttig wrote the majority opinion for the 4th Circuit in Padilla vs. Hanft, which finds that the President's asserted right to declare belligerents as enemy combatants trumps habeus corpus.

IMO, that disqualifies him for the SCOTUS.  I look forward to your comments.

Cheers -

If he were another Justice Taney, I'd say THAT disqualified him.

If it was the correct legal decision, it does not disqualify him for SCOTUS.  

As much as I do not like citizens being held without access to the courts, the President probably does have the power to do so IMO.

Finally someone is making sense!

Whichever senator that is, I like the way he or she thinks!

I agree entirely with the analysis and I do hope that Luttig is the nominee.

It's precisely the correctness of the decision that is in question.

Cheers -

Actually, what could disqualify him is the fact that he wrote an opinion that the Court is likely to hear.  And Roberts voted in one the Court is likely to hear.

Which means that two of the cases Bush is most concerned about could come before a Court with both Luttig and Roberts recused.  Not good for the President.

where he belongs to a potential coalition on this matter?  A Jusice Luttig would be sweet, but he'd need some solid GOP support.  And enough Gang bangers.

But so would anyone else except...

Do you just show up and say "This is wrong, and everybody here needs to justify it to me?"  I think that's bogus.  Excuse me if I don't drop everything I'm doing to write a long legal explanation to somebody who has no interest in actually hearing it.

Don't just show up and try and throw "challenges" at people.  At least add something to the conversation.

I hope your source is 100% correct.  

Luttig is definitely someone worth a brawl.

In my opinion, the doctrine of habeus corpus, which dates back to the very earliest days of English common law and every tradition our nation is based on, trumps the privilege of the President to declare individuals to be "enemy combatants" at will.

How's that?

Cheers -

Because habeus corpus dates back to antiquity in this country it should trump arguments under the Constitution and Geneva Conventions that enemy combatants not aligned with a formal international nation do not get normal legal protections? Slavery dates back to antiquity in this country, as well.

Your position is mostly conclusion and very thin on legal argument.

I will go with Judges Roberts and Luttig on this. But thanks for playing.

Even Alan Dershowitz is saying that Judge Roberts has raised the bar for Republican nominees to the U.S. Supreme Court. If we can all agree on that then the rest should be pretty easy. Not many judges are in that class. But Luttig is by most accounting. He has always been my first choice for the next nomination. Anyone else is likely to be a political pick, which has always been unacceptable to me.

You go with the best judges and legal minds. If there are two openings you go with Roberts and Luttig. As Ronald Reagan used to say, the answers are easy but sometimes hard to implement. Go with Luttig and defeat the filibuster by changing the rules with the Republican senatorial majority.

The doctrine of the "enemy combatant" is rooted, if I'm not mistaken, in Ex Parte Quirin.  The issue in Quirin is, again if I'm not mistaken, whether a US citizen could be tried by a military court without recourse to the civil guarantee of habeus corpus, if that citizen was charged with a violation of the laws of war.  In Ex Parte Quirin, the status of "enemy combatant" belonged to those who:

without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property

This has been asserted of Padilla, but to my knowledge no charge has ever been brought, nor any evidence offered in any court, military or civilian, to substantiate this claim.  It has simply been asserted.

In my opinion, the relevant issue in the case of Padilla is the no charge has ever been made against him.  He has simply been held, without charge, at the discretion of the executive.  The President has asserted, but not demonstrated, that Padilla came to the US as a member of Al Qaeda to detonate a dirty bomb.

In my opinion, FWIW, the President or any agent of government should not be able to, on their own authority and at their own discretion, declare an American citizen to be of a status that disentitles them to the Constitutional protections of due process.  At a minimum, some charge needs to be brought, and some evidence provided to back it up.

My two cents.

Cheers -

And, thanks for playing.

Cheers -

Ex Parte Quirin concerned the venue in which the defendant could be tried -- military or civilian.  There was an assumption that the defendant would be charged and tried.  Nothing such has been proposed or argued for in Padilla.

Thanks -

Three reasons: (1) Dubya wants to go with a woman or a minority; (2) Luttig's opinions--especially on federalism issues--are very, very conservative and likely to make some of the more liberal members of the GOP caucus squeamish; (3) I understand that he had a bad interview with the President for O'Connor's seat the first time around.

I don't believe that having sat on a court that heard a previous case causes you to be disqualified from rehearing it on the Supreme Court.

While I don't have an exact passage, I believe that Roberts in discussing how judges might change on the Supreme Court during his testimony cited a judge that reversed his own lower court opinion on the Supreme Court (I'm not sure if this was a discussion of precedent or a discussion of the effect of colleagues).

Either way, I haven't heard any arguments about this affecting Roberts the way that we have heard arguments against people like Gonzalez or Thompson who were part of the administration whose case was in question.

which he expects us to fetch.

There are times where amos has provided some very thoughtful commentary.

But, most often, he simply tosses more sticks, says "Cheers", and waits for us to bring back his stick--at which time he'll simply throw another.

And, thanks for playing.

Cheers -

And, you might want to drop the snotty, arrogant tone in your posts.

A brilliant reply.  You achieve rudeness while saying precisely nothing of value.

You're welcome to join the game anytime you have something worthwhile to put on the table.

Cheers -

smagar -

Maybe not an unfair criticism.  I'll try to do better.

I will say that, often when I post with a one-liner, I'm just trying to get a prior poster to explain something they said either because I'm not sure I understood it, or to call out a particular point in their argument that I find questionable or incorrect.  In this case, not, and Dave II correctly called me on it.  I hope my expanded response is useful.

Cheers -

smagar -

To tell you the truth, it's hard to find precisely the right tone to use here on RS.  The tone and persona I adopt here is not much like my real world self.  To be honest, the tone and persona I adopt here is, more or less, modelled on that of many other folks that post here.  

In other words, a posture of somewhat arch sarcasm is far from uncommon here on RS.  To that point, you'll note the phrase you found objectionable was a precise quote from the post I was replying to.  If it's only conservatives who may crack wise here, please advise.

In either case, I'll try to be more direct, and less sarcastic.  You may or may not find it preferable.

Cheers -

We don't like or need this as a matter of principle and in this case it isn't warranted.

Your objection seems to be that even if the military can try him by military commission that they can't hold him until they decide they want to try him.

Would you be happier if the 4th Circuit's unanimous panel said they had to charge him within X hours or days?

I wonder what Abe Lincoln would have said to you as he rounded up the MD legislature?

Breyer had a bad interview with President Clinton; but the second time around he still got his seat.

I've read Padilla vs. Haupt and also Quirin.

My objection is less about the length of time Padilla can be held without charge, and more about the process by which he is given enemy combatant status.

I'm not sure what I think about the idea of holding people who have been determined to be enemy combatants without charge for extended periods of time.  I think, overall, it would be better to charge them, but I'm not sure it's necessary.

I am extremely uncomfortable with the idea that the President can, solely on his own authority, designate people as enemy combatants with no recourse for review of that determination.  In Quirin, the charges and evidence against Quirin and company were presented and argued in a military court.  That hasn't happened here.

I'd prefer if Padilla was charged, not so much for its own sake, but to create a venue in which the evidence for the enemy combatant determination to be evaluated and reviewed.

I'd be interested in your thoughts on the above.

In any case, with the possible exception of the issue Dave II raises below, I doubt this would disqualify Luttig for consideration.  It would, however, make him an undesirable SCOTUS pick from my point of view.

Cheers -

Meant to link to these in my earlier reply.

Padilla vs. Hanft

Ex Parte Quirin

Cheers -

I think that's pretty clear.  If Justice Scalia is disqualified from a case because he gave a speech on it (pledge case), I'm pretty sure Roberts would be DQd from participating in a lower Court decision.

is about the process then you are going to view any justice who is following Quirin to be unsatisfactory. Many reasnonable people may argue that Quirin is bad law but I don't see how a reasonable circuit court could decide to overrule Quirin. Padilla's case to date is virtually indistinguishable from the facts surrounding Richard Quirin and Herbert Haupt.

As the court noted to say that the military can try and imprison or execute Padilla is legal but to say that his detention is not legal is just incomprehensible. When Padilla comes to trial he will have the opportunity to challenge the government's case, or so said the DC Circuit in Hamdan.

Can't see why you'd be skeptical of him as a judge (he's a principled thinker who's not likely to revise his views on the Court), or of his performance before the committee (McConnell is a longstanding veteran of academic debates, and knows how to frame an argument).

Only questions are (1) whether his "non-diversity" will make him less confirmable and (2) whether some pro-abortion Republicans will find it impossible to accept a guy with a Bork-sized paper trail ripping Roe.

streiff -

Thanks for your reply here, I appreciate it.  

While I recognize the obvious and numerous similarities, I'm not sure Quirin and Padilla are exactly equivalent concerning the issue that bothers me.  I want to re-read the decisions, also Hamdi, and also the decision that Padilla v Hanft overturned.  If you don't mind, I might ping you after I've had a chance to chew it over.

Thanks -

I think Bush would love to kill two birds with one stone and name a Hispanic woman to the bench.  Especially Ms. Callahan, who has earned some praise from Leahy and others (although not for this position).  See below.

http://leahy.senate.gov/press/200305/052303b.html

Do people have a feel for how appealing she is to the GOP base?  Can I assume she is a conservative Catholic?

Lincoln did, in fact, suspend habeas during the Civil War.  I think there are a couple of differences between then and now.

At the time, there was an active rebellion underway in the US.  That's a condition for which the Constitution specifically allows habeas to be suspended.  The issue in Lincoln's case is that he did so as President, without Congressional approval, and the right to suspend habeas is specifically given to Congress, not the President.

The Quirin case I mention above establishes that enemy combatants, even if US citizens, do not have recourse to habeas.  My question, or issue, has to do with the process by which the status of enemy combatant is established.

Cheers -

From Townhall C-Log

6th Circuit Court Judge Alice Batchelder has a meeting with the White House this week. Her stock amongst conservatives is high, and rising in the White House

From Judiciary Policies and Procedures: Codes of Conduct, this seems to cover both Scalia (and would force his recusal) and Roberts (and would NOT force his recusal):

From CANON 3:

6) A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

Note that Scalia falls under the first part about avoiding public comments.

However, the second part says that This proscription does not extend to public statements made in the course of the judge's official duties which would seem to allow Roberts to rule on decisions he has already been involved in.

So we're back to the age factor ... Batchelder is 61.

Owen is 50 (turns 51 next month) and Owen was part of the filibuster compromise which seems like it would make it more difficult to call her "extraordinary".

But it seems awfully odd that a judge would review their own case.  That's not really a 'review', that's just an 'affirmation'.

Of course, this is one of those situations where you wonder if Leahy likes her because she is less than completely conservative.

I know very little about her although I know she was honored by the Federalist Society of California.

If the president needs to break a tie, he will probably look to the gender/race of the potential nominees.  But in reality the GOP will not gain one female vote by appointing a woman or one black vote by appointing a Black person.

I think people overestimate how much that plays into Bush's pick.

Luttig is the clear choice IMHO.  He's a heavyweight...

I'd forgotten that.

Because it will give the Dems one less thing to grouse about.

Of course, if Bush were to put up a Latino woman who WASN'T qualified then he might get attacked for making a "token" pick.

Which is why he should just go with Owen and be done with it.

She's been a justice on the Supreme Court of one of the largest states (Texas) in the nation.  It would be hard to find her unqualified (although you could argue about her values/beliefs as the Dems surely would).

As Roberts mentioned in his hearings, one judge overruled even his own earlier opinion after discussing it with his new colleagues.

Also, you would be hearing new arguments and have a new group that you were working with.

Some of Judge Roberts' answers with regards to issues of federalism and the extent of the commerce clause made me rather uneasy whereas Judge Luttig seems to indicate that he believes that the "General Welfare clause" and "Commerce Clause" are not simply a blank check on the federal government to do pretty much anything they want - so long as Congress says it's for the "general welfare" or has a "substantial effect" on interstate commerce.

Some of Judge Roberts' answers with regards to issues of federalism and the extent of the commerce clause made me rather uneasy whereas Judge Luttig seems to indicate that he believes that the "General Welfare clause" and "Commerce Clause" are not simply a blank check on the federal government to do pretty much anything they want - so long as Congress says it's for the "general welfare" or has a "substantial effect" on interstate commerce.

I still believe Owen is the one.  She is a Bush friend and a Texand.  Luttig didn't hit it off well with Bush in his interview.  Owen has that "special" status too, being a woman and all.  Her biggest asset is that she was part of the G14 compromise, so she can't be considered extraordinary.  Even the media would see this flip flop and blatant example of hypocricy.  For that matter, Judge Pryor was a member of the G14 compormise.  I hope for him above everybody!

I don't think any of the 3 judges that went through The Deal will be nominated to the Supreme Court (at least before the Nuke goes off).